Drone Litigation Updates

Robert Clark Templeton, “Drawing of an Overview of the Courtroom,” (1971). Wikimedia Commons.

By Arthur Holland Michel

Over the past decade court cases, lawsuits, and freedom of information requests have played a significant role in revealing and shaping the legal, ethical, and political contours of the U.S. targeted killing program. A number of suits remain ongoing today, and these cases could potentially have profound consequences for future U.S. counterterrorism operations. Several ongoing cases could also have a direct bearing on the military and intelligence agreements between the U.S. and various European allies that are alleged to directly and indirectly support U.S. drone operations. This post provides a brief overview of active ongoing lawsuits. It will be updated regularly with developments and new filed cases.



Ahmad Muaffaq Zaidan and Bilal Abdul Kareem v. Donald J. Trump et al.

Country U.S.A.
Court D.C. District Court
Organizations Involved Reprieve US
Description Ahmad Muaffaq Zaidan and Bilal Abdul Kareem are two journalists alleged to have been placed on a targeting list—sometimes referred to as the “Kill List” or “Disposition Matrix”—by the U.S. government. Kareem, a U.S. citizen who has reported on militant groups in Syria, claims to have been targeted by at least five unsuccessful airstrikes in recent years. Zaidan, a Pakistani journalist, has reported on al Qaeda and other groups in Pakistan, and once interviewed Osama bin Laden. The suit alleges that the inclusion of the plaintiffs on the Kill List is, according to the complaint, “the result of arbitrary and capricious agency action, accomplished without due process, and in violation of the United States Constitution and U.S. and international law.” In similar prior cases, U.S. judges have declined to intervene in U.S. targeted killing decisions, reasoning that the judiciary lacks authority over what some might regard as being essentially a policy process. However, in this case, D.C. District Court Judge Rosemary Collyer has ruled that the U.S. government must demonstrate the basis for Kareem’s inclusion on the Kill List. Collier did not extend this ruling to Zaidan as he is not a U.S. citizen.
Status In September 2019, Judge Rosemary Collyer dismissed the case after the U.S. government invoked the “state secrets privilege” to withhold certain information with national security implications from public view.
More Information https://www.politico.com/f/?id=0000015b-2107-d4bd-a5df-bbd7ec5b0001





Criminal Application Submitted by Kareem Khan

Country Pakistan
Court Honorable Islamabad High Court, SHO Secretariat Police Station
Organizations Involved Foundation for Fundamental Rights, Reprieve UK
Description In 2010 a Pakistani citizen filed a motion known as a First Information Report calling on Pakistani law enforcement to investigate CIA officials for the death of his son, Zahinullah Khan, and his brother Asif Iqbal in a drone strike on December 31, 2009. In 2014, the Honorable Islamabad High Court instructed the Station House Officer of the Secretariat Police Station to register a criminal case against two CIA officials: Jonathan Banks, the local Station Chief at the time of the strike, and John Rizzo, a senior agency lawyer. According to representatives from Reprieve UK who spoke with the Center for the Study of the Drone, if an arrest warrant is issued it may be conveyed to Interpol, which could, in turn, potentially issue a Red Notice advising member states that Rizzo and Banks are wanted by Pakistani authorities. Furthermore, the decision could set a precedent under Pakistani criminal law for authorities to file charges against other U.S. officials who were directly involved in strike operations in the country.
Status As of this writing, the Secretariat Police are determining the basis for issuing an arrest warrant for Banks and Rizzo on “offences of murder, conspiracy, waging war against Pakistan and offences under the provisions of Terrorism Act 1997.”
More Information http://rightsadvocacy.org/press.html




Unnamed Plaintiffs Lawsuit Against the Dutch Government

Country Netherlands
Organizations Involved The Nuhanovic Foundation, Prakken d’Oliveira (Law firm)
Description Two Somali citizens injured in a purported U.S. airstrike in 2014 that killed two of their relatives sued the government of the Netherlands for violating Dutch civil law by allegedly providing assistance for the strike.The plaintiffs claim that the strike was an illegal military action under international humanitarian law and human rights law. Specifically, they allege that the Dutch Defence Intelligence and Security Service, a national intelligence agency, provided information that directly supported U.S. drone strikes in Somalia.
Status As of this writing, according to a representative of the Nuhanovic Foundation, the plaintiffs are seeking a court to issue “a declaratory judgment concerning the liability of the Dutch State.”
More Information http://www.prakkendoliveira.nl/en/news/dutch-state-held-accountable-for-drone-attacks-somalia-by-lawyers-prakken-doliveira/




Faisal bin Ali Jaber u.a. gegen Bundesrepublik Deutschland

Country Germany
Court Higher Administrative Court of Münster
Organizations Involved European Center for Constitutional and Human Rights, Reprieve UK
Description In 2014 three Yemeni nationals sued the German government for its alleged  participation in an airstrike on a wedding party in eastern Yemen on August 29, 2012 that killed several of their family members. The plaintiffs argue that Germany’s purported provision of counterterrorism intelligence, as well as the usage rights it grants for Ramstein Air Base, a U.S. military facility located on German soil (in Rhineland-Palatinate), constitute direct support for U.S. drone operations. The complaint alleges that “Germany is violating its constitutional and human rights obligation to protect because it has, thus far, not taken appropriate measures to prevent the U.S. from using its bases and facilities on German territory for drone attacks.” In 2015, the Administrative Court (Verwaltungsgericht) of Cologne dismissed the plaintiffs’ initial claim on the basis that the courts could not dictate German government matters of interstate affairs. In March 2019 the Higher Administrative Court of Münster ruled on appeal that the German government must take measures to ensure that any U.S. operations that involve the Ramstein facility must fully comply with international law. However, the court upheld the portion of the Cologne ruling that the judicial branch could not compel the government to ban support for U.S. operations outright.
Status The German Government has filed an appeal on the March 2019 decision.
More Information https://www.ecchr.eu/en/case/no-end-in-sight-for-us-drone-war-via-germany/




RG 2948/2018

Country Italy
Court Supreme Administrative Court
Organizations Involved European Center for Constitutional and Human Rights
Description The European Center for Constitutional and Human Rights is seeking to obtain information from the Italian government regarding the regulations governing the United States’ use of surveillance and strike drones based at Sigonella Air Base in Sicily. Having been denied multiple initial requests submitted under Italy’s Freedom of Information Act, ECCHR filed a judicial complaint with the regional administrative tribunal (Tribunale Amministrativo Regionale) in Rome, which rejected the complaint on procedural grounds in late 2017. In March 2018, ECCHR filed an appeal with Italy’s supreme administrative court (Consiglio di Stato), which annulled the regional administrative court’s decision in October 2019.
Status The supreme administrative court must now determine whether to compel the Italian government to comply with the FOIA request. The U.S. government will also be notified of the FOIA request.
More Information https://www.ecchr.eu/en/case/sicily-airbase-freedom-of-information-litigation-on-italys-involvement-in-us-drone-program/




Investigation into the Death of Giovanni Lo Porto

Country Italy
Court Rome Tribunal
Organizations Involved European Center for Constitutional and Human Rights
Description Giovanni Lo Porto, an Italian citizen, was kidnapped by al Qaeda-linked militants in Punjab, Pakistan in 2012. Following more than two years in captivity, Lo Porto was killed in a U.S. drone strike near the Afghan border that also resulted in the death of an American captive, Warren Weinstein. Following the White House’s public announcement of the strike in April 2015, the Tribunale di Roma, which had been investigating the kidnapping of Lo Porto since 2012, began investigating the case under Italian federal murder and manslaughter statutes. In March 2018, after lawyers representing Lo Porto’s family challenged a motion by the public prosecutor to close the investigation, the Tribunale di Roma ordered the continuation of the investigation and called for a rogatory request for all U.S. documents relating to the drone strike that killed Lo Porto. According to the European Center for Constitutional and Human Rights, which is providing legal opinion for the case, the investigation hinges in part on whether the strike that killed Lo Porto is subject to international human rights law and Italian criminal law.
Status The presiding judge has until late March 2019 to accept the prosecutor’s request to dismiss the case or to order the continuation of the investigation.
More Information https://www.ecchr.eu/fileadmin/Fallbeschreibungen/Case_Report_Drones_Giovanni_Lo_Porto_2018May.pdf




Criminal Complaint

Country Germany
Court Higher Regional Court of Zweibrücken
Organizations Involved Open Society Justice Initiative
Description The son of a Somali herdsman killed in an alleged drone strike in Somalia in February 2012 has filed a criminal complaint that seeks to prompt an investigation of both U.S. and German military and intelligence personnel based at two military facilities on German territory—Ramstein Air Base and Patch Barracks—for participation in the operation. The complainant alleges that his father had no ties to any active militant groups, and was therefore an unlawful target under international human rights law. The complainant has also filed an administrative complaint against the Federal Republic of Germany for its alleged participation in the same strike (see “Administrative Complaint” below).
Status A motion to initiate an investigation is pending with the Higher Regional Court of Zweibrücken.
More Information https://www.opensocietyfoundations.org/press-releases/new-legal-action-targets-germanys-support-us-drone-strikes




Administrative Complaint

Country Germany
Court Higher Administrative Court of Münster
Organizations Involved Open Society Justice Initiative
Description The son of a Somali herdsman killed in an alleged drone strike in Somalia in February 2012 has filed an administrative complaint against the Federal Republic of Germany. According to a representative of the Open Society Justice Initiative, the plaintiff is seeking that the courts find that Germany “unlawfully increased the risk of the Plaintiff’s father having been killed on February 24, 2012 in Somalia by failing to prohibit the U.S.’s unlawful use of accommodations in Ramstein and Stuttgart for operations with unmanned, armed drones to kill individuals in Somalia.” The complainant has also submitted a suit against U.S. and German personnel allegedly involved in the same strike (see “Criminal Complaint” above).
Status The complaint, which was initially dismissed by the Administrative Court of Cologne, is currently pending on appeal before the Higher Administrative Court of Münster.
More Information https://www.opensocietyfoundations.org/press-releases/new-legal-action-targets-germanys-support-us-drone-strikes




American Civil Liberties Union v. Department of Defense

Country U.S.A
Court District Court for the Southern District of New York
Organizations Involved American Civil Liberties Union
Description In October 2017 the American Civil Liberties Union filed a Freedom of Information Act request with the U.S. government seeking the disclosure of a document referred to as “Principles, Standards, and Procedures.” This document, known as the PSP for short, established rules and guidelines for the use of lethal force outside of areas of active hostilities. The PSP supplanted the Obama administration’s rules for targeted killings set forth in a document called the “Presidential Policy Guidance,” which was publicly released in 2016 as a result of a legal request by the ACLU. In December 2017, after the U.S. government did not respond to the FOIA request seeking release of the PSP, the ACLU filed a lawsuit with the District Court for the Southern District of New York.
Status The case is pending.
More Information https://www.aclu.org/cases/aclu-v-dod-foia-case-seeking-trump-administrations-secret-rules-lethal-strikes-abroad

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